Opinion
DOCKET NO. A-0510-13T1
03-11-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WALTER C. PARRISH, III, Defendant-Appellant.
Walter C. Parrish, III, appellant pro se. Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gioiella Mayer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 10-13. Walter C. Parrish, III, appellant pro se. Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Gioiella Mayer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Walter C. Parrish, III, appeals from his conviction after a trial de novo in the Law Division, Rule 3:23, for driving fifty-six miles per hour in a posted thirty-five-mile-per-hour zone, N.J.S.A. 39:4-98, on the New Jersey side of the approach to the Lincoln Tunnel to Manhattan. The municipal court judge rendered a detailed and thoughtful decision after trial and imposed a $206 fine, $33 in costs, and four points against defendant's driver's license. Judge John A. Young affirmed the verdict and penalties in a thorough and cogent decision on the de novo appeal. We affirm.
The relevant facts and procedural history can be briefly summarized. During the trial, the two police officers who conducted the stop and noted on the speeding ticket that defendant presented a photo license, identified defendant as the driver. They described the stop, which included the use of a laser to register defendant's speed. The stop occurred at approximately 11:27 p.m. on June 19, 2012.
Defendant, who is self-represented both on appeal and in the prior proceedings, introduced into evidence his original hard copy of the ticket as well as a gas station receipt. The receipt showed that at 11:47 p.m., gasoline was purchased with defendant's credit card at a station on Flatbush Avenue in Brooklyn. His defense was that, on the night in question, he was purchasing gasoline in Brooklyn and, based on the time stamps of the ticket and the receipt, he could not possibly have traveled from the point of the stop to the station in Brooklyn in twenty minutes.
In a somewhat confused fashion, defendant also asserted that the "license plate was wrong" on the ticket, as it did not match either of the two cars he normally drives, although he has a third vehicle with a plate bearing a number "similar" to the number on the ticket. Defendant also claimed that unnamed "other folks" drive his vehicle. When asked by the municipal court judge how he would have obtained the original ticket other than by having it handed to him by police, he said:
A I couldn't have been there on the 19th.
Q Okay. But how did you get into possession of the hard copy of the ticket?
A Someone gave me the ticket.
Q Someone gave it to you?
A Yeah.
Q Not a police officer?
A That's correct.
Q Another person?
A Yeah.
When pressed on the issue on cross-examination, he said:
Q So you did -- you did eventually get a copy of the ticket, correct?
A That's correct.
Q And someone gave it to you? And who was that?
A I have other folks that drive my vehicle other than myself.
Q Did those other folks also present your picture driver's license --
A They should not --
Q -- to the police officers?
A They should -- they should not have that. No, they should not have that.
Q Okay. But you do see on the ticket where it says a photo ID was presented to the officers. Is that correct?
A That is correct.
The municipal court judge found the police officers credible. They established that defendant, whom they identified in court, was speeding based on their observation and the reading on a properly calibrated laser machine used by a certified operator. In assessing the defense theory, the judge found that it was not impossible given the hour of the night and the day of the week that a person could travel from the entrance to the Lincoln Tunnel to Brooklyn in twenty minutes. Nor did he believe that the gasoline purchase was dispositive, as it was equally possible that someone, other than defendant, used his credit card. Furthermore, defendant did not satisfactorily explain how he obtained the original ticket. Because the judge gave more credence to the officers' testimony than to defendant and his defense theories, he found defendant guilty.
On the trial de novo, the Law Division judge noted that defendant, in violation of Rule 3:23-8, submitted various documents that he wanted to present to the court with his appeal papers. These documents included an EZ-Pass statement in another person's name, the unsigned gas receipt, a letter from American Express stating defendant was the only signatory on the account, and evidence of his new address. The court excluded the evidence pursuant to the rule, but also noted that ultimately those documents had marginal relevance and would not have altered the outcome.
Defendant failed to appear for his scheduled trial de novo. Now on appeal, contrary to Rule 2:5-4(a), he provides us with materials related to his reasons for his failure to appear, which we will not discuss. Ordinarily, on appellate review, courts do not consider evidence not contained in the record below. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Additionally, given this record, defendant's appearance at oral argument would not have affected the outcome.
The Law Division judge found that a properly calibrated laser machine operated by a certified officer clocked defendant's vehicle as traveling fifty-six miles per hour in a thirty-five-mile-per-hour zone. He further found that the municipal court judge's rejection of the Brooklyn gas station receipt was warranted, in light of either the possibility that someone else could have used defendant's credit card or that, at that late hour on a week night, it would have been possible for someone to get from the entryway of the Lincoln Tunnel to Brooklyn in twenty minutes.
The judge significantly relied upon the officers' version of the events, including in-court identifications, which he found credible. The officers' credibility was corroborated by the fact that appellant had the original speeding ticket in his possession, and that his only explanation for the possession was that an unnamed person, who did not appear at trial, "passed the ticket along to him." The judge found the municipal court judge's credibility findings to be "substantially supported by the record" and affirmed.
Defendant's appeal brief is little more than a request that we consider material not in the record and revisit proofs as if we were the factfinder in the first instance. Other than his disagreement with credibility findings and the ultimate conclusion, he identifies no actual point of error committed by either judge.
Our scope of review on a de novo trial is quite narrow under the "two court rule," where similar fact findings have been made by both the municipal court and the Law Division. See State v. Stas, 212 N.J. 37, 49 n.2 (2012); State v. Oliver, 320 N.J. Super. 405, 421 (App. Div.), certif. denied, 161 N.J. 332 (1999). These factual findings were fully supported by the record. The two judges' conclusions with regard to the officers' credibility as contrasted with defendant's are also supported by the record. The judges did not err in the law. Accordingly, we will not consider defendant's arguments further. See R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION